Ottomeyer v. Pritchett

• Decision Date: 25 November 1903
• Citation: 178 Mo. 160,77 S.W. 62
• Parties: OTTOMEYER et al. v. PRITCHETT et al.
• Court: Missouri Supreme Court

77 S.W. 62

178 Mo. 160

OTTOMEYER et al. v. PRITCHETT et al.

Supreme Court of Missouri, Division No. 1.

November 25, 1903.

DEEDS — MISTAKE — EVIDENCE — SUFFICIENCY — NEW TRIAL — DISCRETION OF COURT — REVIEW ON APPEAL — TRUSTS — SUBSEQUENT CONTROL BY SETTLOR — DRY TRUST — EXECUTION.

1. In ejectment, where the defense was a mistake of the scrivener in the deed under which plaintiff claimed, where the only oral testimony as to the mistake was by the wife of the scrivener, and was to the effect that there was no such mistake, it was error to grant a new trial on the ground that the verdict for plaintiff was against the evidence.

2. Where a father executed a deed to his son and wife in trust for the benefit of their children, he could not, by any act of his, affect the estates vested in the children, either by ascribing a mistake to the scrivener or otherwise; and a subsequent "deed of correction" from him, given 26 years later, could have no such effect.

3. The discretion of the trial court in granting a new trial on the ground that the judgment was against the evidence will be overruled

on appeal, where there was not a scintilla of evidence to support any other verdict than that rendered.

4. A trust for the sole benefit of the trustees' children, under which the trustees were charged with no functions except to hold the property for the children, became, at the maturity of the children, a dry trust, executed by the statute of uses, and the legal title was vested in the beneficiaries.

Appeal from Circuit Court, Jefferson County; Frank R. Dearing, Judge.

Action by William S. Ottomeyer and others against William F. Pritchett and others. Judgment for plaintiffs, and the trial court ordered a new trial. From a judgment granting a new trial, plaintiffs appeal. Reversed.

Kleinschmidt & Reppy, for appellants. Sam Byrns, for respondents.

MARSHALL, J.

This is an appeal from an order granting a new trial. The suit is ejectment for 120 acres of land in Jefferson county. The petition is in the usual form. Zebulon Pritchett is the common source of title. The answer of all the defendants except Sarah Jane is a general denial and a plea of mistake of the scrivener, which the defendant William F. Pritchett asks to have corrected. Sarah Jane answered separately, and admitted the allegations of the petition.

The case made is this: By a deed dated December 4, 1874, and acknowledged February 6, 1875, Zebulon Pritchett and Asenath, his wife, conveyed the land to their son, the defendant William F. Pritchett, and Sarah Jane, his wife, "in trust for the sole use and benefit of their children, Louis Sherman, John Marshall, Asenath Catherine, and any other children that may be born to them in future." Thereafter two other children were born to them, Elizabeth and Callie Jane. At the time of the trial they were all of age, the youngest being 18 or 19 years old. But one witness testified upon the subject of this conveyance, and that was Mrs. Ella Craig, the widow of the justice of the peace who prepared and acknowledged the deed, and she said she was present when the deed was drawn, and the grantor, Zebulon Pritchett, said he wanted it fixed so that his son could not squander the land, and so "he would keep it to raise his children." The plaintiff then proved that William F. Pritchett gave the defendant Charles Waldron a mortgage on the land to secure him for the taxes he agreed to pay on the land, but that the plaintiff William S. Ottomeyer paid the taxes, so that there was no consideration for the mortgage. The plaintiff proved the rental value of the land. It was agreed that the defendant William F. Pritchett was in possession of the land. The plaintiff also introduced a warranty deed from Louis Sherman Pritchett and wife, John Marshall Pritchett and wife, Elizabeth Gully (née Pritchett) and husband, and Callie Jane Pritchett, to the plaintiff William S. Ottomeyer, conveying their four-fifths interest in the land, and showed that the other one-fifth was owned by the plaintiff Asenath Catherine Ottomeyer (née Pritchett). The defendant then introduced, over plaintiff's objection, a conveyance called a "deed of correction," from Zebulon Pritchett, widower, to William F. Pritchett and Sarah Jane, his wife, dated January 11, 1900, wherein it is recited that it was the intention of the grantor by the deed of December 4, 1874, to convey a life estate in the land to William F. Pritchett and his wife, Sarah Jane, and the remainder in fee to their children, and that the scrivener made a mistake in not so drawing the deed, and therefore this deed is made so as to correct the mistake, and to vest the...